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Two Kinds of Unconstitutional Constitutional Interpretations in China’s Hong Kong

Dr. P.Y. Lo, Barrister-at-law, Gilt Chambers, Hong Kong; Faculty of Law, The University of Hong Kong

The taking of oaths by two members of the Legislative Council of the Hong Kong Special Administrative Region (HKSAR) of the People’s Republic of China (PRC) at the first meeting of the newly elected Legislative Council on 12 October 2016 and the ruling of the President of the Legislative Council on 18 October 2016 in respect of their acts have not only led to legal proceedings launched by the Chief Executive of the HKSAR and the Secretary for Justice on 18 October 2016 for declarations and injunctions against them on the ground that their purported oath taking had disqualified them from assuming office, but also the adoption of an interpretation by the PRC’s Standing Committee of the National People’s Congress (NPCSC) of Article 104 of the Basic Law of the HKSAR of the PRC, the provision of the HKSAR’s constitutional document on oath taking by officers ranging from the Chief Executive to principal officials of the executive authorities, legislators and judges when they assume office, on 7 November 2016, while the Court of First Instance (CFI) hearing those legal proceedings was considering its judgment.  Both the conduct of the litigation by the HKSAR Government and the adoption of the NPCSC Interpretation of 7 November 2016 of Article 104 of the Basic Law (2016 NPCSC Interpretation) have attracted criticisms, with some commentators labeling the NPCSC Interpretation as ‘unconstitutional’. [1]

However, the Court of Appeal (CA), hearing appeals from the two legislators that the CFI declared to have been disqualified on 15 November 2016, considered in its judgment of 30 November 2016 that the courts of the HKSAR had no jurisdiction to determine whether an NPCSC interpretation officially promulgated as such is invalid on the ground that it is substantively not an interpretation of a provision of the Basic Law. [2] This apparent self-effacing act on the part of the CA illustrates a stark fact in the constitutional disposition of Hong Kong under the principle of ‘One Country, Two Systems’: While the NPCSC of the Central Authorities can nullify and supersede an interpretation by the HKSAR courts of a provision of the Basic Law with its own interpretation of the same provision, the HKSAR courts believe that they cannot question the authority of the NPCSC to issue an interpretation of the Basic Law in accordance with the provision in the Basic Law on its interpretation and the procedure therein.

This Note maps this asymmetry in dealing with ‘unconstitutional’ constitutional interpretation with reference to the development of the case law of the HKSAR courts since 1999, when the HKSAR’s Court of Final Appeal (CFA) was first asked to interpret provisions of the Basic Law and considers whether and how the CFA might attempt to deal with an NPCSC interpretation and submissions asking it and thus the HKSAR courts to disregard it for substantive reasons in a future occasion.

An issue that started to trouble the minds of the HKSAR judges since the establishment of the HKSAR on 1 July 1997 was whether the HKSAR courts can review the validity of acts of the NPC and its Standing Committee that purport to apply to the HKSAR.  The CA at first compared the HKSAR’s legal relationship with the Beijing Central Authorities like that between the previous colonial administration and the Westminster Parliament and indicated there was no such jurisdiction. [3]  The CFA disagreed with the CA in a later case called Ng Ka Ling, in which it was asked to interpret provisions of the Basic Law, and asserted that the HKSAR courts did have the jurisdiction to examine whether any legislative acts of the NPC or its Standing Committee are consistent with the Basic Law and to declare them to be invalid if found to be inconsistent. [4]  This claim of judicial competence erupted a political controversy with Mainland law professors who were former drafters of the Basic Law expressing strong views for the Central Authorities that the CFA had sought to usurp the NPC and its Standing Committee, bearing in mind that the ‘One Country’ did not embrace the concept of ‘separation of powers’, with the consequence that there was no place for any checking of the acts of the NPC (the highest organ of state power) and its Standing Committee (the standing body of the highest organ of state power) by the courts. [5]  The CFA had to produce a second judgment to state that judicial power of the HKSAR derives from the Basic Law; that the jurisdiction of the HKSAR courts to interpret the Basic Law in adjudicating cases is derived by authorization from the NPCSC, which has the power of interpretation of the Basic Law pursuant to Article 158(1) of the Basic Law, and this jurisdiction is accordingly subject to the provisions of the Basic Law including Article 158; and that the CFA accepted that it could not question the authority of the NPCSC to make an interpretation under Article 158 which would have to be followed by the HKSAR courts, as well as the authority of the NPC or its Standing Committee to do any act which is in accordance with the provisions of the Basic Law and the procedure therein. [6]

The statements in the CFA’s second Ng Ka Ling judgment came to roost soon when later in 1999, the NPCSC did adopt an interpretation of provisions of the Basic Law purportedly under Article 158 of the Basic Law not at the request of the CFA according to the explicit procedure in Article 158(3) carrying conditions for the CFA to apply, but at the request of the Central People’s Government which received a report from the Chief Executive of the HKSAR saying that implementing the CFA’s interpretation of the provisions of the Basic Law done in Ng Ka Ling would have serious (if not grave) policy and social consequences. [7] This 1999 NPCSC Interpretation was adopted to nullify and supersede the CFA’s interpretation of the relevant provisions of the Basic Law in the Ng Ka Ling case and another case, stating at the same time that the CFA should have in Ng Ka Ling made use of the Article 158(3) procedure to refer the relevant provision(s) to the NPCSC for interpretation. [8] The CFA, in a case heard after the adoption of the 1999 NPCSC Interpretation, rejected the submission that Article 158 imposed a constitutional restraint on the power of the NPCSC with the consequence that the NPCSC cannot interpret the Basic Law except upon a reference by the CFA under the procedure in Article 158(3) and considered that the power of interpretation of the NPCSC is general and unqualified. Rather, the HKSAR courts’ authority to interpret the Basic Law stems from that general power of interpretation of the NPCSC. This power of interpretation enjoyed by the HKSAR courts is limited to exercise in adjudicating cases, whereas the NPCSC’s power to interpret provisions of the Basic Law covers all provisions and is necessarily exercised from time to time otherwise than in the adjudication of cases. [9] The CFA later in 2001 acknowledged that the NPCSC, when it interprets laws, functions under a system which is different from the system in the HKSAR and its interpretation of provisions of law can clarify and supplement them. Yet, ‘both systems being within one country’, the NPCSC’s interpretation made ‘in conformity with art.158 under a different system is binding in and part of the system in the Region’. [10]

The 2016 NPCSC Interpretation was accordingly considered by the CA in the light of the above binding precedents or relevant statements of the CFA. Any suggestion that the 2016 NPCSC Interpretation does not have effect was likely to have fallen and did fall on deaf ears. Many might have felt concerned or discouraged by Chief Judge Andrew Cheung’s view that where it is sought to question in the HKSAR and before the HKSAR courts the validity of an NPCSC interpretation purportedly adopted in accordance with the Basic Law and the procedure therein, the submissions of a common law lawyer untrained in the legal system of the PRC Mainland were ‘simply quite irrelevant’. At the same time, the Chief Judge applied the statements in the second Ng Ka Ling judgment above to say that the HKSAR courts have never been vested with the jurisdiction to determine whether an interpretation officially promulgated as such by the NPCSC with reference to Article 67(4) of the PRC Constitution and Article 158 of the Basic Law and the procedure therein is nonetheless invalid. In the circumstances, the Chief Judge could have dismissed the submissions advanced on the more particular bases of lack of evidentiary or doctrinal support to preserve room for argument. [11]

Hong Kong is not bereft of relevant and reasonable discussions on this important topic of judicial limitation of the effect of an NPCSC interpretation. For example, Cora Chan of the University of Hong Kong has pointed out in an article written before the 2016 NPCSC Interpretation that the CFA’s acceptance of the NPCSC having a general and unqualified power of interpretation of all provisions of the Basic Law exercisable from time to time carries the implication that where an interpretation of the Basic Law disposes of the case, the power of final adjudication is vested with the NPCSC rather than the HKSAR’s CFA. [12]  The 2016 NPCSC Interpretation demonstrates this point squarely. This is because: Firstly, the process of the deliberation for the adoption of this interpretation was initiated by the NPCSC’s meeting of chairmen and in progress in the same week as the CFI heard oral arguments on the legal proceedings commenced to disqualify the two legislators on account of their purported oath taking. Secondly, after the CFI had reserved judgment before the weekend, the NPCSC voted after the weekend to adopt the interpretation, which not only effectively made the submissions made on behalf of the HKSAR Government before the CFI the applicable law, but also added several other trimmings. Thirdly, Article 104’s 78 words has now been subject to the interpretation of 500 odd words claiming that certain portions of that Article meant these, that a certain portion thereof was to be characterized as those, and that oath taking shall be such and such with consequential legal obligations and responsibility on the part of the oath taker specified.  Quantitatively and qualitatively, a lawyer applying the proverbial ‘smell test’ would have found something was amiss. [13] Yet, while CFI stated its conclusions largely in relation to the submissions it had received beforehand in favour of disqualification, the Chief Judge on appeal applied the 2016 NPCSC Interpretation as putting the matter beyond doubt or conclusively defeating the argument advanced on behalf of the impugned legislator. [14]

Although Cora Chan had hoped that the HKSAR courts would develop ways to narrow or sidestep the 2016 NPCSC Interpretation using well-honed techniques of the common law lawyer to dilute this NPCSC interpretation, [15] the CA may have found it difficult to do so here, not only because of the relatively brief submissions it received from counsel on this aspect of the appeals (since they chose to argue the appeals principally on the basis that the HKSAR Government’s law suits were unwarranted interferences with the internal affairs of the legislature, as to which the courts would not, pursuant to the common law doctrine of ‘non-intervention’, sanction), but also because of the statements in the second Ng Ka Ling judgment above, which self-diminished the role of the HKSAR courts to that of a functionary giving effect to an officially adopted (cf enrollment of an Act of Parliament) NPCSC interpretation of a provision of the Basic Law that appears to be directly relevant to the question(s) of interpretation of the Basic Law or adjudication before them. Maybe the CA presently saw no other way but had to become integrated or co-opted into this particular exercise of State Power.  If the HKSAR courts were to follow Chan’s call to decide, before compliance, whether the particular exercise of State Power was one that was outside the scope of the power of interpretation conferred upon the NPCSC under the Basic Law, such as whether the adopted text truly interpreted a provision of the Basic Law (as opposed to amended it), that would involve the HKSAR courts apparently departing from the CFA’s 1999 judgment on the binding effect of the 1999 NPCSC Interpretation, [16] and aggregating to themselves a power of substantive review of officially adopted NPCSC interpretations. Such a power grab is liable to criticism, at least from the Chinese Mainland mainstream scholarship, as it attempts to invert the apparent relationship of authorization between the NPCSC and the HKSAR courts under Article 158 of the Basic Law, and therefore compromises the ‘One Country’ prerequisite of the ‘One Country, Two Systems’ principle, involves doing something that the PRC courts in the Chinese Mainland (being subordinate institutions under the NPC and its Standing Committee, collectively the highest organ of state power under the PRC Constitution) may not and cannot do, and questions the NPCSC’s exercise of the power of interpretation as an act that was other than in accordance with the law, for the purpose of maintaining the rule of law in Hong Kong, overseeing the HKSAR’s implementation of the Basic Law, and protecting the high degree of autonomy of the HKSAR. [17]

This is not to say that Mainland legal scholarship is a monolithic whole or that the HKSAR’s legal minds have nothing to contribute. Both the PRC Constitution and the Basic Law of the HKSAR prescribe rules and they are supposed to be applied according to its language and underlying spirit as rules, if not laws.  It has been adequately recognized in Mainland legal scholarship that the original thought (or even design) of Article 158 of the Basic Law is for the ‘normal’ mode of the NPCSC interpreting a provision of the Basic Law satisfying specified criteria based upon a reference from the CFA, but in 1999, the NPCSC interpreted provisions of the Basic Law ex post a judgment of the CFA interpreting the same provisions in departure of the ‘normal’ mode, supposedly by reason of special circumstances justifying an exception. [18] The 2016 NPCSC Interpretation has gone further in interpreting a provision of the Basic Law ex ante a judgment of the HKSAR courts interpreting that same provision, which should be characterized as a much further departure from the ‘normal’ mode. Proper understanding of the implications of the 2016 NPCSC Interpretation and its contents on the rule of law in Hong Kong may proceed from this point.

In 2011, Sir Anthony Mason, the former Chief Justice of Australia who served as a Non-permanent Judge of the CFA between 1997 and 2015, remarked extra-judicially that ‘much may depend upon the frequency, the subject matter and content of Standing Committee interpretations and the circumstances in which they are sought’. At that time, Sir Anthony was consoled by the post-1999 NPCSC Interpretation situation that the decisions of the HKSAR courts were respected and prevail, even if their interpretations of the Basic Law may give way on occasions to different interpretations based on a different system of law. [19] The 2016 NPCSC Interpretation has created the new situation of the NPCSC seeking to interfere decisively into the decision-making of the HKSAR courts. The time may have come to ask the CFA to review its 1999 statements, and its hitherto unqualified acceptance of the binding force of NPCSC interpretations. However, if the CFA is to accept this invitation, it will surely be regarded by the Central Authorities as ‘turning rogue’.

Suggested Citation: P.Y. Lo, Two Kinds of Unconstitutional Constitutional Interpretations in China’s Hong Kong, Int’l J. Const. L. Blog, Dec. 23, 2016, at: http://www.iconnectblog.com/2016/12/two-kinds-of-unconstitutional-constitutional-interpretations


[1] For news reports of the legal proceedings and the 2016 NPCSC Interpretation, see BBC News (2 November 2016, at: http://www.bbc.com/news/blogs-china-blog-37846569); BBC News (7 November 2016, at: http://www.bbc.com/news/world-asia-china-37893947); and BBC News (2 December 2016, at: http://www.bbc.com/news/world-asia-china-38183979).  Readers who wish to dwell deeper into the events can access the rulings of the President of the Legislative Council and the appendices thereto: (a) 18 October 2016, at: http://www.legco.gov.hk/yr16-17/english/pre_rul/pre20161018-ref-e.pdf; and (b) 25 October 2016, at: http://www.legco.gov.hk/yr16-17/english/pre_rul/pre20161025-ref-e.pdf.

[2] Chief Executive of the HKSAR v President of the Legislative Council (CACV 224-227/2016, 30 November 2016), accessible at: http://legalref.judiciary.gov.hk/lrs/common/ju/ju_frame.jsp?DIS=107010 (on appeal from the judgment of Court of First Instance of 15 November 2016, accessible at: http://legalref.judiciary.gov.hk/lrs/common/ju/ju_frame.jsp?DIS=106799). The 2016 NPCSC Interpretation is reproduced verbatim in footnote 1 of the Court of Appeal’s judgment.

[3] HKSAR v Ma Wai Kwan David [1997] HKLRD 761 (accessible at: http://legalref.judiciary.gov.hk/lrs/common/ju/ju_frame.jsp?DIS=15957).

[4] Ng Ka Ling & Ors v Director of Immigration (1999) 2 HKCFAR 4 (accessible at: http://legalref.judiciary.gov.hk/lrs/common/ju/ju_frame.jsp?DIS=34052).

[5] See Xiao Weiyun and others, ‘Why the Court of Final Appeal was Wrong: Comments of the Mainland Scholars on the Judgment of the Court of Final Appeal’, in Johannes Chan, Fu Hualing and Yash Ghai (eds), Hong Kong’s Constitutional Debate: Conflicts over Interpretation (Hong Kong: Hong Kong University Press, 2000) pp 53-59.

[6] Ng Ka Ling & Ors v Director of Immigration (No 2) (1999) 2 HKCFAR 141 (accessible at: http://legalref.judiciary.gov.hk/lrs/common/ju/ju_frame.jsp?DIS=34248).

[7] The full text of the Basic Law of the HKSAR is accessible at: http://www.basiclaw.gov.hk/en/basiclawtext/.

[8] The 1999 NPCSC Interpretation is accessible at: http://www.basiclaw.gov.hk/en/basiclawtext/images/basiclawtext_doc17.pdf. Only the parties in the Ng Ka Ling were not subject to the effect of the 1999 NPCSC Interpretation, in accordance with Article 158(3) of the Basic Law stating that ‘judgments previously rendered’ shall not be affected.

[9] Lau Kong Yung & Ors v Director of Immigration (1999) 2 HKCFAR 300 (accessible at: http://legalref.judiciary.gov.hk/lrs/common/ju/ju_frame.jsp?DIS=18930).

[10] Director of Immigration v Chong Fung Yuen (2001) 4 HKCFAR 211 (accessible at: http://legalref.judiciary.gov.hk/lrs/common/ju/ju_frame.jsp?DIS=22558).

[11] Chief Executive of the HKSAR v President of the Legislative Council (CACV 224-227/2016, 30 November 2016), note 2 above, at [56]-[59].

[12] Cora Chan, The Legal Limits on Beijing’s Powers to Interpret Hong Kong’s Basic Law (3 November 2016), at: http://researchblog.law.hku.hk/2016/11/cora-chan-on-legal-limits-of-beijings.html.

[13] Ibid, where Cora Chan expressed the view that the then anticipated 2016 NPCSC Interpretation could not be recognized as respecting the restraining ethos of Article 158 of the Basic Law protective of the HKSAR’s judicial autonomy and its common law system’s integrity while ensuring that the PRC’s sovereign prerogatives would not be endangered, since Chan regarded Article 104 as a provision that concerns matters that fall within the autonomy of the HKSAR, that the interpretation would have been issued in the absence of a reference of the CFA, that the offensive oath taking performances by the two legislators was in her opinion not endangering national unity or territorial integrity, and that in the light of the language of Article 104, which specifies at most both the requirement of taking of an oath of prescribed content, it was hard to imagine the NPCSC to be able to achieve its purpose without adding new content.

[14] Chief Executive of the HKSAR v President of the Legislative Council (CACV 224-227/2016, 30 November 2016), note 2 above, at [27]-[29].

[15] Such as drawing distinctions within the text of the 2016 NPCSC Interpretation, applying other provisions of the Basic Law to delimit the scope of the 2016 NPCSC Interpretation, narrowing down the effective content in the text of the 2016 NPCSC Interpretation only to those that truly concerns Article 104, and restricting the retrospective effect of the 2016 NPCSC Interpretation, see Cora Chan, ‘How Hong Kong’s courts interpret Beijing’s interpretation of the Basic Law may yet surprise’, South China Morning Post (9 November 2016), at: http://www.scmp.com/comment/insight-opinion/article/2044385/how-hong-kongs-courts-interpret-beijings-interpretation.

[16] I.e. the Lau Kong Yung case under note 9 above.

[17] The theme of PRC mainstream legal scholarship involves following what a State Council White Paper on the implementation of ‘One Country, Two Systems’ in the HKSAR (2014) provides, which is that the PRC Constitution and the Basic Law together constitute the constitutional basis of the HKSAR. The PRC Constitution, with supreme legal status and the highest legal authority, is applicable throughout the territory of the PRC, including the HKSAR. The NPC and its Standing Committee are collectively the highest organ of state power provided under the PRC Constitution. For the text of this White Paper, access: http://www.fmcoprc.gov.hk/eng/xwdt/gsxw/t1164057.htm.

[18] See Ma Ling, Three Questions of Interpretations of the NPCSC of the Hong Kong Basic Law (2016) China Law Review, Issue 3, 67-73 (in Chinese), at: http://www.chinalawreview.com.cn/article/20160705141419.html.

[19] See Sir Anthony Mason, ‘The Rule of Law in the Shadow of the Giant: The Hong Kong Experience’ (2011) 33 Sydney Law Review 623-644, at: http://sydney.edu.au/law/slr/slr_33/slr33_4/SLRv33no4Mason.pdf.

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Published on December 23, 2016
Author:          Filed under: Analysis, Developments
 

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